oSpecifically,
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (known
simply as “Title III”), and a later statute called the Electronic
Communications Privacy Act of 1986 (“the ECPA”), made it a felony for any
person to conduct warrantless wiretapping or engage in various other forms of
electronic eavesdropping.[6]

oThey also made
it a separate felony to disclose anything obtained from proscribed
eavesdropping activities.

oIn 1986, the
ECPA changed the original Title III statute also made it a felony to hack
stored communications.[7]

o

ØPolice Wiretaps: Title III also contains the procedures
for conducting wiretaps in criminal investigations.

oI’ll come back
to it in a second after I finish running through relevant criminal statutes.

Most penal statutes are found in Title 18 of the U.S.
Code, but there are many penal provisions scattered in almost all Titles of
the Code.

The Anti-Agee Act, for example, is
codified in Title 50.

Ø50 U.S.C. § 421: The Intelligence Identities Protection Act
(The Anti-Agee Act): The Anti-Agee Act is really called the Intelligence
Identities Protection Act, and it’s codified in Title 50, Chapter 15 as an
amendment to the National Security Act of 1947.

oIt criminalizes
knowingly revealing the identity of a covert agent. The story of this statute
starts with a disgruntled ex-CIA officer.

oPhilip Agee was
an ex-CIA operations officer who went nuts after he left the agency and started
a campaign to destroy his former employer—or at least disrupt its activities.[8]

oHe went around
teaching foreign audiences about the CIA’s tradecraft, and he published the
names of over 1000 CIA employees around the world.

oBecause of the
unprecedented nature of Agee’s breakdown, there was no criminal law that
specifically outlawed what he was doing.

oThe entire
Intelligence Community was furious and quite frustrated by the inability to get
this guy.[9]

oTheir
frustration over the legal loophole motivated Congress to act.[10]

oThey remedied
the gap with a new penal statute called the Intelligence Identities Protection
Act of 1980—or the “Anti-Agee Act.”[11]

oIt criminalizes
knowingly revealing the identity of a covert agent.[12]

§This statute is what got Vice President Cheney’s Chief of Staff,
Scooter Libby, in trouble in the Valerie Plame affair, although he was
ultimately convicted of other things.

Footnotes

[1] The Espionage Act of
1917, 40 Stat. 422, 18 U.S.C. §§ 793– 798; see also generallyJennifer K. Elsea, Congressional Research
Serv., Criminal Prohibitions on the Publication of Classified Defense
Information (2010), available athttps://intelligencelaw.com/files/pdf/law_library/crs/R41404_12-6-2010.pdf
(“National defense information in general is protected by the Espionage Act, 18
U.S.C. §§ 793– 798, while other types of relevant information are covered
elsewhere. Some provisions apply only to government employees or others who
have authorized access to sensitive government information, [Citing
E.g., 18 U.S.C. §§ 952 (prohibiting disclosure of diplomatic codes and
correspondence), 1924 (unauthorized removal and retention of classified
documents or material); 50 U.S.C. § 783 (unauthorized disclosure of classified
information to an agent of a foreign government, unauthorized receipt by
foreign government official)] but the following provisions apply to all
persons. 18 U.S.C. § 793 prohibits the gathering, transmitting, or receipt of
defense information with the intent or reason to believe the information will
be used against the United States or to the benefit of a foreign nation.
Violators are subject to a fine or up to 10 years imprisonment, or both, as are
those who conspire to violate the statute. Persons who possess defense
information that they have reason to know could be used to harm the national
security, whether the access is authorized or unauthorized, and who disclose
that information to any person not entitled to receive it, or who fail to surrender
the information to an officer of the United States, are subject to the same
penalty. Although it is not necessary that the information be classified by a
government agency, the courts seem to give deference to the executive
determination of what constitutes “defense information.” Information that is
made available by the government to the public is not covered under the
prohibition, however, because public availability of such information negates
the bad-faith intent requirement. On the other hand, classified documents
remain within the ambit of the statute even if information contained therein is
made public by an unauthorized leak.”) (most internal footnotes omitted).

[2]E.g. 18 U.S.C. §
798 (“Disclosure of classified information (a) Whoever knowingly and willfully
communicates, furnishes, transmits, or otherwise makes available to an
unauthorized person, or publishes, or uses in any manner prejudicial to the
safety or interest of the United States or for the benefit of any foreign
government to the detriment of the United States any classified
information—-(1) concerning the nature, preparation, or use of any code,
cipher, or cryptographic system of the United States or any foreign government;
or (2) concerning the design, construction, use, maintenance, or repair of any
device, apparatus, or appliance used or prepared or planned for use by the
United States or any foreign government for cryptographic or communication
intelligence purposes; or (3) concerning the communication intelligence
activities of the United States or any foreign government; or (4) obtained by
the processes of communication intelligence from the communications of any
foreign government, knowing the same to have been obtained by such
processes—-Shall be fined … or imprisoned not more than ten years, or both.”).

[4] 18 U.S.C. § 1385
(“Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air
Force as a posse comitatus or otherwise to execute the laws shall be fined
under this title or imprisoned not more than two years, or both.”); see also
generallyJennifer Elsea,
Congressional Research Serv., The Posse Comitatus Act and Related Matters: A
Sketch (2005), available athttps://intelligencelaw.com/files/pdf/law_library/crs/RS20590_6-6-2005.pdf
(“The Posse Comitatus Act states that: Whoever, except in cases and under
circumstances expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force as a posse comitatus or
otherwise to execute the laws shall be fined under this title or imprisoned not
more than two years, or both. 18 U.S.C. § 1385. It reflects an American
tradition that bridles at military involvement in civilian affairs. Congress,
however, has approved a number of instances where extraordinary circumstances
warrant a departure from the general rule, particularly in cases where the
armed forces provide civilian assistance without becoming directly involved in
civilian law enforcement.”).

[5]SeeJennifer Elsea, Congressional Research Serv.,
The Posse Comitatus Act and Related Matters: A Sketch (2005), available
athttps://intelligencelaw.com/files/pdf/law_library/crs/RS20590_6-6-2005.pdf
(“The Posse Comitatus Act does not apply where Congress has expressly
authorized use of the military to execute the law. Congress has done so in
three ways, by giving a branch of the armed forces civilian law enforcement
authority, by establishing general rules for certain types of assistance, and
by addressing individual cases and circumstances with more narrowly crafted
legislation. Thus it has vested the Coast Guard, a branch of the armed forces,
with broad law enforcement responsibilities. Second, over the years it has
passed a fairly extensive array of particularized statutes, like those
permitting the President to call out the armed forces in times of insurrection
and domestic violence, 10 U.S.C. §§ 331-335. Finally, it has enacted general
legislation authorizing the armed forces to share information and equipment with
civilian law enforcement agencies, 10 U.S.C. §§ 371-382.”).

[7]SeeGina Marie Stevens & Charles Doyle,
Congressional Research Serv., Privacy: An Overview of Federal Statutes
Governing Wiretapping and Electronic Eavesdropping, 98-326 (2009), available
athttps://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf
(“At the heart of Title III/ECPA lies the prohibition against illegal
wiretapping and electronic eavesdropping, 18 U.S.C. 2511(1), that bans: any
person from intentionally intercepting, or endeavoring to intercept, wire, oral
or electronic communications by using an electronic, mechanical or other device
unless the conduct is specifically authorized or expressly not covered, e.g.
one of the parties to the conversation has consent to the interception the
interception occurs in compliance with a statutorily authorized, (and
ordinarily judicially supervised) law enforcement or foreign intelligence
gathering interception, the interception occurs as part of providing or
regulating communication services, certain radio broadcasts, and in some
places, spousal wiretappers.”).

[8]See generally
Haig v. Agee, 453 U.S. 280 (1981); see also generallyJennifer K. Elsea, Congressional Research
Serv., Protection of National Security Information (2006), available
athttps://intelligencelaw.com/files/pdf/law_library/crs/RL33502_12-26-2006.pdf
(“Philip Agee was a former CIA agent who engaged in a “campaign to fight the
United States CIA,” which included publishing names of CIA operatives around
the world. In order to put a stop to this activity, the Department of State
revoked his passport. Agee challenged that action as an impermissible burden on
his freedom to travel and an effort to penalize his exercise of free speech to
criticize the government. The Supreme Court disagreed, finding the passport
regulations constitutional because they may be applied “only in cases involving
likelihood of ‘serious damage’ to national security or foreign policy.””)
(internal footnotes omitted).

[9] The Secretary of State
came up with a brainstorm and used a provision of the Passport Act to revoke
Agee’s passport, effectively locking him down in one country. The hope was to
prevent him from taking his course material on the road to the Soviet Union and
hopefully force him to return home to the United States—the only place he could
gain entry without a passport. Agee didn’t want to come home—as you might
imagine—instead, he challenged the revocation of his passport on First
Amendment and other grounds. The Supreme Court wasn’t in the mood to help this
guy out in any way, so they upheld the Secretary of State’s revocation. See Haig
v. Agee, 453 U.S. 280, 305-06 (1981).

[10]SeeElizabeth B. Bazan, Congressional Research
Serv., Intelligence Identities Protection Act (2003), available athttps://intelligencelaw.com/files/pdf/law_library/crs/RS21636_10-3-2003.pdf
(“In 1982, the Intelligence Identities Protection Act was enacted into law as
an amendment to the National Security Act of 1947. This Act was a response to
concerns of members of the House and Senate Intelligence Committees and others
in Congress “about the systematic effort by a small group of Americans,
including some former intelligence agency employees, to disclose the names of
covert intelligence agents.” The Senate Judiciary Committee’s report also
discussed the efforts of Philip Agee, Lewis Wolf, and others to identify and
disclose U.S. intelligence officers as part of “a systematic effort to destroy
the ability of [U.S.] intelligence agencies to operate clandestinely,” and
their apparent repercussions. Such disclosures preceded and may have
contributed to circumstances resulting in the death or attempted assassination
of some CIA officers, expulsion of others from a foreign country following
charges of spying, and impairment of relations with foreign intelligence
sources. Two of Agee’s books revealed over 1,000 names of alleged CIA officers.
Wolf was co-editor of the “Covert Action Information Bulletin,” a publication
which contained a section entitled “Naming Names.” Wolf claimed to have
revealed the names of over 2,000 CIA officers. He also provided addresses,
phone numbers, license tag numbers, and colors of the automobiles of some
alleged intelligence agents. Such calculated disclosures set the stage for the
consideration and passage of the Intelligence Identities Protection Act.”)
(internal footnotes omitted).

[12]SeeElizabeth B. Bazan, Congressional Research
Serv., Intelligence Identities Protection Act (2003), available athttps://intelligencelaw.com/files/pdf/law_library/crs/RS21636_10-3-2003.pdf
(“In 1982, Congress passed the Intelligence Identities Protection Act,
P.L.97-200. The Act, as amended, is codified at 50 U.S.C. §§ 421-426. Under 50
U.S.C. § 421 criminal penalties are provided, in certain circumstances, for
intentional, unauthorized disclosure of information identifying a covert agent,
where those making such a disclosure know that the information disclosed
identifies the covert agent as such and that the United States is taking
affirmative measures to conceal the covert agent’s foreign intelligence
relationship to the United States. Other sections of the Act provide exceptions
and defenses to prosecution, make provision for extraterritorial application of
the offenses in section 421, include reporting requirements to Congress, and
set forth definitions of the terms used in the Act. There do not appear to be
any published cases involving prosecutions under this Act.”).